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Publication: Surveillance of Injured Workers


Surveillance of Injured Workers

A Pennsylvania man who suffered a broken arm when he fell at work later sued a private detective agency for invasion of his privacy and lost. The injured man claimed that the agency had violated his privacy when it videotaped him praying inside a mosque.

The detective agency had been hired by the injured man’s employer’s insurance company. Insurance companies that handle work-injury claims frequently put injured claimants under surveillance. Surveillance using videos or photographs can be a successful tool to document occasions when injured claimants engage in physical activities that are inconsistent with their claimed injuries. In the case of the injured worker who sued the detective agency, the detective used a zoom lens from across a highway, standing 80 yards from the mosque. He filmed the injured worker through a window while the worker stood and knelt for 45 minutes.

The injured man argued that he had an expectation of privacy even while praying in public. He claimed that constitutional freedom affords everyone complete privacy when engaged in prayer and worship, even in visible locations. Contending that acts of worship are always private, the injured worker argued that even though he participated in the worship service with others, he sought to keep the service “free from interference of the world,” and, in particular, he sought to “keep his prayers to his god private to himself.”

The court rejected his claims, noting first that established law acknowledges that all injured workers who raise compensation claims have a diminished expectation of privacy. Simply by raising compensation claims, injured workers give up privacy in their medical records and even in their physical presence in public places. The court observed that the mosque was open to the public, and that the injured man was praying directly in front of a plate-glass window. The court refused “to create a privacy expectation based on religion,” and focused on the fact that the injured worker was in public at the time of the surveillance. The court noted that the worker’s physical activities, and not his thoughts, prayers, or even expressions of prayer, were viewed and videotaped.

A critical fact in the court’s decision was that the detective was standing at a lawful vantage point in a parking lot across the highway from the mosque. His use of a zoom lens, similar to using binoculars, was deemed reasonable. Also important was the fact that the injured worker could have been seen and watched by any member of the non-trespassing public standing outside the mosque. The court found that the worker could not have reasonably expected that he was unseen while praying.

While surveillance at times of prayer or worship may offend some people, the law links privacy rights to reasonable expectations of privacy. When people pray in public, they have no right to assume that they are free from observation and video recording. All injured workers should expect surveillance. Any physical activity that is strenuous, against medical advice, or beyond the injured person’s physical capacity should be avoided because surveillance can create the impression that the claimant is not injured. As to claimants who are in fact feigning or overstating their injuries, surveillance can produce evidence that leads to insurance fraud prosecution